October 25, 2009

Criminal defense lawyer reveals confidences of executed client?

Dave Hoffman at Concurring Opinions posted this, about an interview with David, Martin, the criminal defense counsel for the since-executed Cameron Todd Willingham. Since the execution, arson experts have argued that the original arson report relied upon theories that were discredited just before (or about the same time) as the trial. The matter has received a lot of attention recently, and is often presented as a case where an innocent man was executed. I don't want to get into the innocence question, but rather want to ask whether the defense counsel violated any ethical rules in the interview. Texas's confidentiality rule is here.

The lawyer is presumably motivated at least in part to rebut the implicit allegation that he should have knocked out the arson report against his client and should have saved his client's life. But there's no malpractice or discipline claim against the lawyer, so I can't conclude that he is justified by (c)(5) or (6). (Under the ABA approach to that exception, the comments provide that a lawyer can defend herself even before formal claims or charges are filed, but Texas doesn't have similar comments. And my intuition -- unburdened by research at this point -- is that the public embarrassment of the recent media coverage is not enough to trigger the ABA's preventative disclosure anyway.)

Even if we apply the broad duty of confidentiality, some of what the lawyer said is common place following a noteworthy trial; he said, for example, that the prosecutor introduced this evidence or that evidence against my client. He suggested that the arson report wasn't the only evidence that was introduced.

The lawyer repeatedly emphasizes that he conducted tests that inculpated his client. I can't think of why the lawyer would be entitled to reveal that to the world. It relates to the representation and is detrimental to the client.

But much of the interview consists of the lawyer attacking the validity of a new report and arguing that the report was biased and based upon distant, second-hand knowledge of the case. That part of the lawyer's comments don't fit easily into a breach of confidentiality, do they?

The dynamic is the one that sometimes occurs when a capital defendant asserts ineffective assistance of counsel and the lawyer defends herself. I assume that there is case law and secondary literature on that issue. Here, of course, the lawyer can't say that he has been accused by his client of ineffectiveness.

What do you all think? (One of my thoughts is that Anderson Cooper needed to be better prepared.)

Comments

Criminal defense lawyer reveals confidences of executed client?

Dave Hoffman at Concurring Opinions posted this, about an interview with David, Martin, the criminal defense counsel for the since-executed Cameron Todd Willingham. Since the execution, arson experts have argued that the original arson report relied upon theories that were discredited just before (or about the same time) as the trial. The matter has received a lot of attention recently, and is often presented as a case where an innocent man was executed. I don't want to get into the innocence question, but rather want to ask whether the defense counsel violated any ethical rules in the interview. Texas's confidentiality rule is here.

The lawyer is presumably motivated at least in part to rebut the implicit allegation that he should have knocked out the arson report against his client and should have saved his client's life. But there's no malpractice or discipline claim against the lawyer, so I can't conclude that he is justified by (c)(5) or (6). (Under the ABA approach to that exception, the comments provide that a lawyer can defend herself even before formal claims or charges are filed, but Texas doesn't have similar comments. And my intuition -- unburdened by research at this point -- is that the public embarrassment of the recent media coverage is not enough to trigger the ABA's preventative disclosure anyway.)

Even if we apply the broad duty of confidentiality, some of what the lawyer said is common place following a noteworthy trial; he said, for example, that the prosecutor introduced this evidence or that evidence against my client. He suggested that the arson report wasn't the only evidence that was introduced.

The lawyer repeatedly emphasizes that he conducted tests that inculpated his client. I can't think of why the lawyer would be entitled to reveal that to the world. It relates to the representation and is detrimental to the client.

But much of the interview consists of the lawyer attacking the validity of a new report and arguing that the report was biased and based upon distant, second-hand knowledge of the case. That part of the lawyer's comments don't fit easily into a breach of confidentiality, do they?

The dynamic is the one that sometimes occurs when a capital defendant asserts ineffective assistance of counsel and the lawyer defends herself. I assume that there is case law and secondary literature on that issue. Here, of course, the lawyer can't say that he has been accused by his client of ineffectiveness.

What do you all think? (One of my thoughts is that Anderson Cooper needed to be better prepared.)